House Bill 0391er

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  1

  2         An act relating to the Department of Law

  3         Enforcement; creating s. 943.0543, F.S.;

  4         requiring that the department provide qualified

  5         entities that provide care, treatment, or other

  6         services for children, the elderly, or

  7         individuals with disabilities access to

  8         criminal history information; requiring

  9         compliance with certain federal laws; providing

10         for fees; providing for the disclosure of

11         criminal history records that are not exempt

12         from disclosure under the public records law;

13         requiring the department to establish a

14         database of entities qualified to obtain

15         criminal history information; providing certain

16         exemptions from liability; providing rulemaking

17         authority; creating s. 943.0543, F.S.;

18         ratifying the National Crime Prevention and

19         Privacy Compact; requiring that the executive

20         director of the department administer the

21         compact; creating s. 943.0544, F.S.;

22         authorizing the department to develop and

23         operate the Criminal Justice Network; providing

24         for the department to regulate access to the

25         network; authorizing the department to accept

26         services in lieu of fees or other charges;

27         authorizing the department to enter into

28         agreements with private entities for the

29         purpose of managing and disseminating criminal

30         justice information; providing rulemaking

31         authority; amending ss. 943.0585, 943.059,


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  1         F.S., relating to the court-ordered expunction

  2         and sealing of criminal history records;

  3         providing that references to any chapter,

  4         section, or subdivision in the section

  5         constitute a general reference under the

  6         doctrine of incorporation by reference;

  7         clarifying certain requirements for a petition

  8         to expunge or seal a criminal history record;

  9         repealing s. 943.051(5), F.S., relating to the

10         department's authority to contract with other

11         agencies and private entities for the

12         management and dissemination of criminal

13         justice information; authorizing the

14         Administration Commission to increase positions

15         within the department following notice and

16         public hearing; amending s. 790.065, F.S.,

17         relating to the sale and delivery of firearms;

18         postponing the expiration of that section;

19         providing for modification, or suspension of

20         collection, of fees for criminal history

21         checks; amending s. 943.053, F.S.; amending s.

22         943.053, F.S.; providing each office of the

23         Public Defender on-line access to criminal

24         records which are not exempt from disclosure

25         and not confidential under law; providing an

26         effective date.

27

28  Be It Enacted by the Legislature of the State of Florida:

29

30         Section 1.  Section 943.0542, Florida Statutes, is

31  created to read:


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  1         943.0542  Access to criminal history information

  2  provided by the department to qualified entities.--

  3         (1)  As used in this section, the term:

  4         (a)  "Care" means the provision of care, treatment,

  5  education, training, instruction, supervision, or recreation

  6  to children, the elderly, or individuals with disabilities.

  7         (b)  "Qualified entity" means a business or

  8  organization, whether public, private, operated for profit,

  9  operated not for profit, or voluntary, which provides care or

10  care-placement services, including a business or organization

11  that licenses or certifies others to provide care or

12  care-placement services.

13         (2)(a)  A qualified entity must register with the

14  department before submitting a request for screening under

15  this section. Each such request must be voluntary and conform

16  to the requirements established in the National Child

17  Protection Act of 1993, as amended. As a part of the

18  registration, the qualified entity must agree to comply with

19  state and federal law and must so indicate by signing an

20  agreement approved by the department. The department may

21  periodically audit qualified entities to ensure compliance

22  with federal law and this section.

23         (b)  A qualified entity shall submit to the department

24  a request for screening an employee or volunteer or person

25  applying to be an employee or volunteer on a completed

26  fingerprint card, with a signed waiver allowing the release of

27  state and national criminal history record information to the

28  qualified entity.

29         (c)  Each such request must be accompanied by a fee,

30  which shall approximate the actual cost of producing the

31  record information, as provided in s. 943.053, plus the amount


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  1  required by the Federal Bureau of Investigation for the

  2  national criminal history check in compliance with the

  3  National Child Protection Act of 1993, as amended.

  4         (d)  Any current or prospective employee or volunteer

  5  who is subject to a request for screening must indicate to the

  6  qualified entity submitting the request the name and address

  7  of each qualified entity that has submitted a previous request

  8  for screening regarding that employee or volunteer.

  9         (3)  The department shall provide directly to the

10  qualified entity the state criminal history records that are

11  not exempt from disclosure under chapter 119 or otherwise

12  confidential under law. A person who is the subject of a state

13  criminal history record may challenge the record only as

14  provided in s. 943.056.

15         (4)  The national criminal history data is available to

16  qualified entities to use only for the purpose of screening

17  employees and volunteers or persons applying to be an employee

18  or volunteer with a qualified entity. The department shall

19  provide this national criminal history record information

20  directly to the qualified entity as authorized by the written

21  waiver required for submission of a request to the department.

22         (5)  The determination whether the criminal history

23  record shows that the employee or volunteer has been convicted

24  of or is under pending indictment for any crime that bears

25  upon the fitness of the employee or volunteer to have

26  responsibility for the safety and well-being of children, the

27  elderly, or disabled persons shall solely be made by the

28  qualified entity. This section does not require the department

29  to make such a determination on behalf of any qualified

30  entity.

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  1         (6)  The qualified entity must notify in writing the

  2  person of his or her right to obtain a copy of any background

  3  screening report, including the criminal history records, if

  4  any, contained in the report, and of the person's right to

  5  challenge the accuracy and completeness of any information

  6  contained in any such report and to obtain a determination as

  7  to the validity of such challenge before a final determination

  8  regarding the person is made by the qualified entity reviewing

  9  the criminal history information. A qualified entity that is

10  required by law to apply screening criteria, including any

11  right to contest or request an exemption from

12  disqualification, shall apply such screening criteria to the

13  state and national criminal history record information

14  received from the department for those persons subject to the

15  required screening.

16         (7)  The department may establish a database of

17  registered qualified entities and make this data available

18  free of charge to all registered qualified entities. The

19  database must include, at a minimum, the name, address, and

20  phone number of each qualified entity.

21         (8)  A qualified entity is not liable for damages

22  solely for failing to obtain the information authorized under

23  this section with respect to an employee or volunteer. The

24  state, any political subdivision of the state, or any agency,

25  officer, or employee of the state or a political subdivision

26  is not liable for damages for providing the information

27  requested under this section.

28         (9)  The department has authority to adopt rules to

29  implement this section.

30         Section 2.  Section 943.0543, Florida Statutes, is

31  created to read:


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  1         943.0543  National Crime Prevention and Privacy

  2  Compact; ratification and implementation.--

  3         (1)  In order to facilitate the authorized interstate

  4  exchange of criminal history information for noncriminal

  5  justice purposes, including, but not limited to, background

  6  checks for the licensing and screening of employees and

  7  volunteers under the National Child Protection Act of 1993, as

  8  amended, and to implement the National Crime Prevention and

  9  Privacy Compact, 42 U.S.C. s. 14616, the Legislature approves

10  and ratifies the compact. The executive director of the

11  Department of Law Enforcement shall execute the compact on

12  behalf of the state.

13         (2)  The department is the repository of criminal

14  history records for purposes of the compact and shall do all

15  things necessary or incidental to carrying out the compact.

16         (3)  The executive director of the department, or the

17  director's designee, is the state's compact officer and shall

18  administer the compact within the state. The department may

19  adopt rules and establish procedures for the cooperative

20  exchange of criminal history records between the state and

21  Federal Government for use in noncriminal justice cases.

22         (4)  The state's ratification of the compact remains in

23  effect until legislation is enacted which specifically

24  renounces the compact.

25         (5)  This compact and this section do not affect or

26  abridge the obligations and responsibilities of the department

27  under other provisions of this chapter, including s. 943.053,

28  and does not alter or amend the manner, direct or otherwise,

29  in which the public is afforded access to criminal history

30  records under state law.

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  1         Section 3.  Section 943.0544, Florida Statutes, is

  2  created to read:

  3         943.0544  Criminal justice information network and

  4  information management.--

  5         (1)  The department may develop, implement, maintain,

  6  and manage innovative, progressive, and effective methods of

  7  serving the information-management needs of criminal justice

  8  agencies, and may take necessary steps to promote the

  9  efficient and cost-effective use of such information.

10         (2)  The department may develop, implement, maintain,

11  manage, and operate the Criminal Justice Network, which shall

12  be an intraagency information and data-sharing network for use

13  by the state's criminal justice agencies. The department, in

14  consultation with the Criminal and Juvenile Justice

15  Information Systems Council, shall determine and regulate

16  access to the Criminal Justice Network by the state's criminal

17  justice agencies.

18         (3)  In addition, the department may authorize entities

19  that offer or provide a product, program, or service

20  determined by the department to be of substantial value to the

21  criminal justice information needs of the state's criminal

22  justice agencies a special limited presence on the network

23  under terms, conditions, and limitations established by the

24  department after consultation with the Criminal and Juvenile

25  Justice Information Systems Council.

26         (4)  In carrying out its duties under this section, the

27  department may enter into contracts; conduct pilot studies and

28  projects; assess and collect fees, commissions, royalties, or

29  other charges from entities approved for special presence on

30  the Criminal Justice Network in consideration for such

31  presence. The department may enter into agreements by which


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  1  products, programs, or services of value to the department or

  2  the information needs of criminal justice agencies are

  3  provided in lieu of all or a part of a fee, commission,

  4  royalty, or charge that might otherwise be assessed by the

  5  department upon an entity granted special limited presence as

  6  provided in this subsection.

  7         (5)  The department may enter into an agreement with

  8  any entity to facilitate the department's responsibilities for

  9  receiving, maintaining, managing, processing, allowing access

10  to, and disseminating criminal justice information,

11  intelligence, data, or criminal history records and

12  information, or to otherwise accomplish the duties and

13  responsibilities related to information and records as defined

14  in this chapter. The department may enter into agreements by

15  which products, programs, or services of value to the

16  department or the information needs of criminal justice

17  agencies are provided in lieu of all or part of a fee,

18  commission, royalty, or charge that might be otherwise

19  assessed by the department upon an entity entering into an

20  agreement with the department. Any entity under contract with

21  the department to perform all or part of the department's

22  information functions or duties shall, as specified in the

23  contract, be performing such functions or duties as a criminal

24  justice agency for purposes of handling, collecting, managing,

25  or disseminating criminal justice information, intelligence,

26  data, histories, and other records. Disclosure of such

27  information to an entity under such a contract does not waive

28  any confidentiality or exemption from disclosure under s.

29  119.07 or any other applicable law.

30         (6)  The department may adopt rules to administer this

31  section. Except as otherwise specified in this section, this


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  1  section does not alter or limit the powers and duties of the

  2  department established under this chapter.

  3         Section 4.  For the purpose of incorporating all

  4  amendments made prior to the effective date of this act to the

  5  chapters, sections, or subdivisions of Florida Statutes

  6  referenced in section 943.0585, Florida Statutes, 1998

  7  Supplement, which amendments have not been incorporated by

  8  reference thereto, section 943.0585, Florida Statutes, 1998

  9  Supplement, is reenacted and amended to read:

10         943.0585  Court-ordered expunction of criminal history

11  records.--The courts of this state have jurisdiction over

12  their own procedures, including the maintenance, expunction,

13  and correction of judicial records containing criminal history

14  information to the extent such procedures are not inconsistent

15  with the conditions, responsibilities, and duties established

16  by this section.  Any court of competent jurisdiction may

17  order a criminal justice agency to expunge the criminal

18  history record of a minor or an adult who complies with the

19  requirements of this section.  The court shall not order a

20  criminal justice agency to expunge a criminal history record

21  until the person seeking to expunge a criminal history record

22  has applied for and received a certificate of eligibility for

23  expunction pursuant to subsection (2).  A criminal history

24  record that relates to a violation of chapter 794, s. 800.04,

25  s. 817.034, s. 827.071, chapter 839, s. 893.135, or a

26  violation enumerated in s. 907.041 may not be expunged,

27  without regard to whether adjudication was withheld, if the

28  defendant was found guilty of or pled guilty or nolo

29  contendere to the offense, or if the defendant, as a minor,

30  was found to have committed, or pled guilty or nolo contendere

31  to committing, the offense as a delinquent act. The court may


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  1  only order expunction of a criminal history record pertaining

  2  to one arrest or one incident of alleged criminal activity,

  3  except as provided in this section. The court may, at its sole

  4  discretion, order the expunction of a criminal history record

  5  pertaining to more than one arrest if the additional arrests

  6  directly relate to the original arrest. If the court intends

  7  to order the expunction of records pertaining to such

  8  additional arrests, such intent must be specified in the

  9  order. A criminal justice agency may not expunge any record

10  pertaining to such additional arrests if the order to expunge

11  does not articulate the intention of the court to expunge a

12  record pertaining to more than one arrest. This section does

13  not prevent the court from ordering the expunction of only a

14  portion of a criminal history record pertaining to one arrest

15  or one incident of alleged criminal activity.  Notwithstanding

16  any law to the contrary, a criminal justice agency may comply

17  with laws, court orders, and official requests of other

18  jurisdictions relating to expunction, correction, or

19  confidential handling of criminal history records or

20  information derived therefrom.  This section does not confer

21  any right to the expunction of any criminal history record,

22  and any request for expunction of a criminal history record

23  may be denied at the sole discretion of the court.

24         (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY

25  RECORD.--Each petition to a court to expunge a criminal

26  history record is complete only when accompanied by:

27         (a)  A certificate of eligibility for expunction issued

28  by the department pursuant to subsection (2).

29         (b)  The petitioner's sworn statement attesting that

30  the petitioner:

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  1         1.  Has never, prior to the date on which the petition

  2  is filed, previously been adjudicated guilty of a criminal

  3  offense or comparable ordinance violation or adjudicated

  4  delinquent for committing a felony or a misdemeanor specified

  5  in s. 943.051(3)(b).

  6         2.  Has not been adjudicated guilty of, or adjudicated

  7  delinquent for committing, any of the acts stemming from the

  8  arrest or alleged criminal activity to which the petition

  9  pertains.

10         3.  Has never secured a prior sealing or expunction of

11  a criminal history record under this section, former s.

12  893.14, former s. 901.33, or former s. 943.058, or from any

13  jurisdiction outside the state.

14         4.  Is eligible for such an expunction to the best of

15  his or her knowledge or belief and does not have any other

16  petition to expunge or any petition to seal pending before any

17  court.

18

19  Any person who knowingly provides false information on such

20  sworn statement to the court commits a felony of the third

21  degree, punishable as provided in s. 775.082, s. 775.083, or

22  s. 775.084.

23         (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior

24  to petitioning the court to expunge a criminal history record,

25  a person seeking to expunge a criminal history record shall

26  apply to the department for a certificate of eligibility for

27  expunction. The department shall, by rule adopted pursuant to

28  chapter 120, establish procedures pertaining to the

29  application for and issuance of certificates of eligibility

30  for expunction. The department shall issue a certificate of

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  1  eligibility for expunction to a person who is the subject of a

  2  criminal history record if that person:

  3         (a)  Has obtained, and submitted to the department, a

  4  written, certified statement from the appropriate state

  5  attorney or statewide prosecutor which indicates:

  6         1.  That an indictment, information, or other charging

  7  document was not filed or issued in the case.

  8         2.  That an indictment, information, or other charging

  9  document, if filed or issued in the case, was dismissed or

10  nolle prosequi by the state attorney or statewide prosecutor,

11  or was dismissed by a court of competent jurisdiction.

12         3.  That the criminal history record does not relate to

13  a violation of chapter 794, s. 800.04, s. 817.034, s. 827.071,

14  chapter 839, s. 893.135, or a violation enumerated in s.

15  907.041, where the defendant was found guilty of, or pled

16  guilty or nolo contendere to any such offense, or that the

17  defendant, as a minor, was found to have committed, or pled

18  guilty or nolo contendere to committing, such an offense as a

19  delinquent act, without regard to whether adjudication was

20  withheld.

21         (b)  Remits a $75 processing fee to the department for

22  placement in the Department of Law Enforcement Operating Trust

23  Fund, unless such fee is waived by the executive director.

24         (c)  Has submitted to the department a certified copy

25  of the disposition of the charge to which the petition to

26  expunge pertains.

27         (d)  Has never, prior to the date on which the

28  application for a certificate of eligibility is filed,

29  previously been adjudicated guilty of a criminal offense or

30  comparable ordinance violation or adjudicated delinquent for

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  1  committing a felony or a misdemeanor specified in s.

  2  943.051(3)(b).

  3         (e)  Has not been adjudicated guilty of, or adjudicated

  4  delinquent for committing, any of the acts stemming from the

  5  arrest or alleged criminal activity to which the petition to

  6  expunge pertains.

  7         (f)  Has never secured a prior sealing or expunction of

  8  a criminal history record under this section, former s.

  9  893.14, former s. 901.33, or former s. 943.058.

10         (g)  Is no longer under court supervision applicable to

11  the disposition of the arrest or alleged criminal activity to

12  which the petition to expunge pertains.

13         (h)  Is not required to wait a minimum of 10 years

14  prior to being eligible for an expunction of such records

15  because all charges related to the arrest or criminal activity

16  to which the petition to expunge pertains were dismissed prior

17  to trial, adjudication, or the withholding of adjudication.

18  Otherwise, such criminal history record must be sealed under

19  this section, former s. 893.14, former s. 901.33, or former s.

20  943.058 for at least 10 years before such record is eligible

21  for expunction.

22         (3)  PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--

23         (a)  In judicial proceedings under this section, a copy

24  of the completed petition to expunge shall be served upon the

25  appropriate state attorney or the statewide prosecutor and

26  upon the arresting agency; however, it is not necessary to

27  make any agency other than the state a party. The appropriate

28  state attorney or the statewide prosecutor and the arresting

29  agency may respond to the court regarding the completed

30  petition to expunge.

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  1         (b)  If relief is granted by the court, the clerk of

  2  the court shall certify copies of the order to the appropriate

  3  state attorney or the statewide prosecutor and the arresting

  4  agency. The arresting agency is responsible for forwarding the

  5  order to any other agency to which the arresting agency

  6  disseminated the criminal history record information to which

  7  the order pertains. The department shall forward the order to

  8  expunge to the Federal Bureau of Investigation. The clerk of

  9  the court shall certify a copy of the order to any other

10  agency which the records of the court reflect has received the

11  criminal history record from the court.

12         (c)  For an order to expunge entered by a court prior

13  to July 1, 1992, the department shall notify the appropriate

14  state attorney or statewide prosecutor of an order to expunge

15  which is contrary to law because the person who is the subject

16  of the record has previously been convicted of a crime or

17  comparable ordinance violation or has had a prior criminal

18  history record sealed or expunged. Upon receipt of such

19  notice, the appropriate state attorney or statewide prosecutor

20  shall take action, within 60 days, to correct the record and

21  petition the court to void the order to expunge. The

22  department shall seal the record until such time as the order

23  is voided by the court.

24         (d)  On or after July 1, 1992, the department or any

25  other criminal justice agency is not required to act on an

26  order to expunge entered by a court when such order does not

27  comply with the requirements of this section. Upon receipt of

28  such an order, the department must notify the issuing court,

29  the appropriate state attorney or statewide prosecutor, the

30  petitioner or the petitioner's attorney, and the arresting

31  agency of the reason for noncompliance. The appropriate state


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  1  attorney or statewide prosecutor shall take action within 60

  2  days to correct the record and petition the court to void the

  3  order.  No cause of action, including contempt of court, shall

  4  arise against any criminal justice agency for failure to

  5  comply with an order to expunge when the petitioner for such

  6  order failed to obtain the certificate of eligibility as

  7  required by this section or such order does not otherwise

  8  comply with the requirements of this section.

  9         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

10  criminal history record of a minor or an adult which is

11  ordered expunged by a court of competent jurisdiction pursuant

12  to this section must be physically destroyed or obliterated by

13  any criminal justice agency having custody of such record;

14  except that any criminal history record in the custody of the

15  department must be retained in all cases. A criminal history

16  record ordered expunged that is retained by the department is

17  confidential and exempt from the provisions of s. 119.07(1)

18  and s. 24(a), Art. I of the State Constitution and not

19  available to any person or entity except upon order of a court

20  of competent jurisdiction. A criminal justice agency may

21  retain a notation indicating compliance with an order to

22  expunge.

23         (a)  The person who is the subject of a criminal

24  history record that is expunged under this section or under

25  other provisions of law, including former s. 893.14, former s.

26  901.33, and former s. 943.058, may lawfully deny or fail to

27  acknowledge the arrests covered by the expunged record, except

28  when the subject of the record:

29         1.  Is a candidate for employment with a criminal

30  justice agency;

31         2.  Is a defendant in a criminal prosecution;


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  1         3.  Concurrently or subsequently petitions for relief

  2  under this section or s. 943.059;

  3         4.  Is a candidate for admission to The Florida Bar;

  4         5.  Is seeking to be employed or licensed by or to

  5  contract with the Department of Children and Family Services

  6  or the Department of Juvenile Justice or to be employed or

  7  used by such contractor or licensee in a sensitive position

  8  having direct contact with children, the developmentally

  9  disabled, the aged, or the elderly as provided in s.

10  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

11  402.302(3) s. 402.302(8), s. 402.313(3), s. 409.175(2)(i), s.

12  415.102(4), s. 415.1075(4), s. 985.407, or chapter 400; or

13         6.  Is seeking to be employed or licensed by the Office

14  of Teacher Education, Certification, Staff Development, and

15  Professional Practices of the Department of Education, any

16  district school board, or any local governmental entity that

17  licenses child care facilities.

18         (b)  Subject to the exceptions in paragraph (a), a

19  person who has been granted an expunction under this section,

20  former s. 893.14, former s. 901.33, or former s. 943.058 may

21  not be held under any provision of law of this state to commit

22  perjury or to be otherwise liable for giving a false statement

23  by reason of such person's failure to recite or acknowledge an

24  expunged criminal history record.

25         (c)  Information relating to the existence of an

26  expunged criminal history record which is provided in

27  accordance with paragraph (a) is confidential and exempt from

28  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

29  State Constitution, except that the department shall disclose

30  the existence of a criminal history record ordered expunged to

31  the entities set forth in subparagraphs (a)1., 4., 5., and 6.


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  1  for their respective licensing and employment purposes, and to

  2  criminal justice agencies for their respective criminal

  3  justice purposes.  It is unlawful for any employee of an

  4  entity set forth in subparagraph (a)1., subparagraph (a)4.,

  5  subparagraph (a)5., or subparagraph (a)6. to disclose

  6  information relating to the existence of an expunged criminal

  7  history record of a person seeking employment or licensure

  8  with such entity or contractor, except to the person to whom

  9  the criminal history record relates or to persons having

10  direct responsibility for employment or licensure decisions.

11  Any person who violates this paragraph commits a misdemeanor

12  of the first degree, punishable as provided in s. 775.082 or

13  s. 775.083.

14         (5)  STATUTORY REFERENCES.--Any reference to any other

15  chapter, section, or subdivision of the Florida Statutes in

16  this section constitutes a general reference under the

17  doctrine of incorporation by reference.

18         Section 5.  For the purpose of incorporating all

19  amendments made prior to the effective date of this act to the

20  chapters, sections, or subdivisions of Florida Statutes

21  referenced in section 943.059, Florida Statutes, 1998

22  Supplement, which amendments have not been incorporated by

23  reference thereto, section 943.059, Florida Statutes, 1998

24  Supplement, is reenacted and amended to read:

25         943.059  Court-ordered sealing of criminal history

26  records.--The courts of this state shall continue to have

27  jurisdiction over their own procedures, including the

28  maintenance, sealing, and correction of judicial records

29  containing criminal history information to the extent such

30  procedures are not inconsistent with the conditions,

31  responsibilities, and duties established by this section.  Any


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  1  court of competent jurisdiction may order a criminal justice

  2  agency to seal the criminal history record of a minor or an

  3  adult who complies with the requirements of this section.  The

  4  court shall not order a criminal justice agency to seal a

  5  criminal history record until the person seeking to seal a

  6  criminal history record has applied for and received a

  7  certificate of eligibility for sealing pursuant to subsection

  8  (2).  A criminal history record that relates to a violation of

  9  chapter 794, s. 800.04, s. 817.034, s. 827.071, chapter 839,

10  s. 893.135, or a violation enumerated in s. 907.041 may not be

11  sealed, without regard to whether adjudication was withheld,

12  if the defendant was found guilty of or pled guilty or nolo

13  contendere to the offense, or if the defendant, as a minor,

14  was found to have committed or pled guilty or nolo contendere

15  to committing the offense as a delinquent act. The court may

16  only order sealing of a criminal history record pertaining to

17  one arrest or one incident of alleged criminal activity,

18  except as provided in this section. The court may, at its sole

19  discretion, order the sealing of a criminal history record

20  pertaining to more than one arrest if the additional arrests

21  directly relate to the original arrest.  If the court intends

22  to order the sealing of records pertaining to such additional

23  arrests, such intent must be specified in the order.  A

24  criminal justice agency may not seal any record pertaining to

25  such additional arrests if the order to seal does not

26  articulate the intention of the court to seal records

27  pertaining to more than one arrest.  This section does not

28  prevent the court from ordering the sealing of only a portion

29  of a criminal history record pertaining to one arrest or one

30  incident of alleged criminal activity. Notwithstanding any law

31  to the contrary, a criminal justice agency may comply with


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  1  laws, court orders, and official requests of other

  2  jurisdictions relating to sealing, correction, or confidential

  3  handling of criminal history records or information derived

  4  therefrom.  This section does not confer any right to the

  5  sealing of any criminal history record, and any request for

  6  sealing a criminal history record may be denied at the sole

  7  discretion of the court.

  8         (1)  PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each

  9  petition to a court to seal a criminal history record is

10  complete only when accompanied by:

11         (a)  A certificate of eligibility for sealing issued by

12  the department pursuant to subsection (2).

13         (b)  The petitioner's sworn statement attesting that

14  the petitioner:

15         1.  Has never, prior to the date on which the petition

16  is filed, previously been adjudicated guilty of a criminal

17  offense or comparable ordinance violation or adjudicated

18  delinquent for committing a felony or a misdemeanor specified

19  in s. 943.051(3)(b).

20         2.  Has not been adjudicated guilty of or adjudicated

21  delinquent for committing any of the acts stemming from the

22  arrest or alleged criminal activity to which the petition to

23  seal pertains.

24         3.  Has never secured a prior sealing or expunction of

25  a criminal history record under this section, former s.

26  893.14, former s. 901.33, former s. 943.058, or from any

27  jurisdiction outside the state.

28         4.  Is eligible for such a sealing to the best of his

29  or her knowledge or belief and does not have any other

30  petition to seal or any petition to expunge pending before any

31  court.


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  1

  2  Any person who knowingly provides false information on such

  3  sworn statement to the court commits a felony of the third

  4  degree, punishable as provided in s. 775.082, s. 775.083, or

  5  s. 775.084.

  6         (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to

  7  petitioning the court to seal a criminal history record, a

  8  person seeking to seal a criminal history record shall apply

  9  to the department for a certificate of eligibility for

10  sealing.  The department shall, by rule adopted pursuant to

11  chapter 120, establish procedures pertaining to the

12  application for and issuance of certificates of eligibility

13  for sealing.  The department shall issue a certificate of

14  eligibility for sealing to a person who is the subject of a

15  criminal history record provided that such person:

16         (a)  Has submitted to the department a certified copy

17  of the disposition of the charge to which the petition to seal

18  pertains.

19         (b)  Remits a $75 processing fee to the department for

20  placement in the Department of Law Enforcement Operating Trust

21  Fund, unless such fee is waived by the executive director.

22         (c)  Has never, prior to the date on which the

23  application for a certificate of eligibility is filed,

24  previously been adjudicated guilty of a criminal offense or

25  comparable ordinance violation or adjudicated delinquent for

26  committing a felony or a misdemeanor specified in s.

27  943.051(3)(b).

28         (d)  Has not been adjudicated guilty of or adjudicated

29  delinquent for committing any of the acts stemming from the

30  arrest or alleged criminal activity to which the petition to

31  seal pertains.


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  1         (e)  Has never secured a prior sealing or expunction of

  2  a criminal history record under this section, former s.

  3  893.14, former s. 901.33, or former s. 943.058.

  4         (f)  Is no longer under court supervision applicable to

  5  the disposition of the arrest or alleged criminal activity to

  6  which the petition to seal pertains.

  7         (3)  PROCESSING OF A PETITION OR ORDER TO SEAL.--

  8         (a)  In judicial proceedings under this section, a copy

  9  of the completed petition to seal shall be served upon the

10  appropriate state attorney or the statewide prosecutor and

11  upon the arresting agency; however, it is not necessary to

12  make any agency other than the state a party.  The appropriate

13  state attorney or the statewide prosecutor and the arresting

14  agency may respond to the court regarding the completed

15  petition to seal.

16         (b)  If relief is granted by the court, the clerk of

17  the court shall certify copies of the order to the appropriate

18  state attorney or the statewide prosecutor and to the

19  arresting agency. The arresting agency is responsible for

20  forwarding the order to any other agency to which the

21  arresting agency disseminated the criminal history record

22  information to which the order pertains. The department shall

23  forward the order to seal to the Federal Bureau of

24  Investigation. The clerk of the court shall certify a copy of

25  the order to any other agency which the records of the court

26  reflect has received the criminal history record from the

27  court.

28         (c)  For an order to seal entered by a court prior to

29  July 1, 1992, the department shall notify the appropriate

30  state attorney or statewide prosecutor of any order to seal

31  which is contrary to law because the person who is the subject


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  1  of the record has previously been convicted of a crime or

  2  comparable ordinance violation or has had a prior criminal

  3  history record sealed or expunged.  Upon receipt of such

  4  notice, the appropriate state attorney or statewide prosecutor

  5  shall take action, within 60 days, to correct the record and

  6  petition the court to void the order to seal.  The department

  7  shall seal the record until such time as the order is voided

  8  by the court.

  9         (d)  On or after July 1, 1992, the department or any

10  other criminal justice agency is not required to act on an

11  order to seal entered by a court when such order does not

12  comply with the requirements of this section.  Upon receipt of

13  such an order, the department must notify the issuing court,

14  the appropriate state attorney or statewide prosecutor, the

15  petitioner or the petitioner's attorney, and the arresting

16  agency of the reason for noncompliance. The appropriate state

17  attorney or statewide prosecutor shall take action within 60

18  days to correct the record and petition the court to void the

19  order.  No cause of action, including contempt of court, shall

20  arise against any criminal justice agency for failure to

21  comply with an order to seal when the petitioner for such

22  order failed to obtain the certificate of eligibility as

23  required by this section or when such order does not comply

24  with the requirements of this section.

25         (e)  An order sealing a criminal history record

26  pursuant to this section does not require that such record be

27  surrendered to the court, and such record shall continue to be

28  maintained by the department and other criminal justice

29  agencies.

30         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

31  criminal history record of a minor or an adult which is


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  1  ordered sealed by a court of competent jurisdiction pursuant

  2  to this section is confidential and exempt from the provisions

  3  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

  4  and is available only to the person who is the subject of the

  5  record, to the subject's attorney, to criminal justice

  6  agencies for their respective criminal justice purposes, or to

  7  those entities set forth in subparagraphs (a)1., 4., 5., and

  8  6. for their respective licensing and employment purposes.

  9         (a)  The subject of a criminal history record sealed

10  under this section or under other provisions of law, including

11  former s. 893.14, former s. 901.33, and former s. 943.058, may

12  lawfully deny or fail to acknowledge the arrests covered by

13  the sealed record, except when the subject of the record:

14         1.  Is a candidate for employment with a criminal

15  justice agency;

16         2.  Is a defendant in a criminal prosecution;

17         3.  Concurrently or subsequently petitions for relief

18  under this section or s. 943.0585;

19         4.  Is a candidate for admission to The Florida Bar;

20         5.  Is seeking to be employed or licensed by or to

21  contract with the Department of Children and Family Services

22  or the Department of Juvenile Justice or to be employed or

23  used by such contractor or licensee in a sensitive position

24  having direct contact with children, the developmentally

25  disabled, the aged, or the elderly as provided in s.

26  110.1127(3), s. 393.063(14), s. 394.4572(1), s. 397.451, s.

27  402.302(3) s. 402.302(8), s. 402.313(3), s. 409.175(2)(i), s.

28  415.102(4), s. 415.103, s. 985.407, or chapter 400; or

29         6.  Is seeking to be employed or licensed by the Office

30  of Teacher Education, Certification, Staff Development, and

31  Professional Practices of the Department of Education, any


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  1  district school board, or any local governmental entity which

  2  licenses child care facilities.

  3         (b)  Subject to the exceptions in paragraph (a), a

  4  person who has been granted a sealing under this section,

  5  former s. 893.14, former s. 901.33, or former s. 943.058 may

  6  not be held under any provision of law of this state to commit

  7  perjury or to be otherwise liable for giving a false statement

  8  by reason of such person's failure to recite or acknowledge a

  9  sealed criminal history record.

10         (c)  Information relating to the existence of a sealed

11  criminal record provided in accordance with the provisions of

12  paragraph (a) is confidential and exempt from the provisions

13  of s. 119.07(1) and s. 24(a), Art. I of the State

14  Constitution, except that the department shall disclose the

15  sealed criminal history record to the entities set forth in

16  subparagraphs (a)1., 4., 5., and 6. for their respective

17  licensing and employment purposes. It is unlawful for any

18  employee of an entity set forth in subparagraph (a)1.,

19  subparagraph (a)4., subparagraph (a)5., or subparagraph (a)6.

20  to disclose information relating to the existence of a sealed

21  criminal history record of a person seeking employment or

22  licensure with such entity or contractor, except to the person

23  to whom the criminal history record relates or to persons

24  having direct responsibility for employment or licensure

25  decisions.  Any person who violates the provisions of this

26  paragraph commits a misdemeanor of the first degree,

27  punishable as provided in s. 775.082 or s. 775.083.

28         (5)  STATUTORY REFERENCES.--Any reference to any other

29  chapter, section, or subdivision of the Florida Statutes in

30  this section constitutes a general reference under the

31  doctrine of incorporation by reference.


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  1         Section 6.  Subsection (5) of section 943.051, Florida

  2  Statutes, as amended by section 6 of chapter 98-94, Laws of

  3  Florida, is repealed.

  4         Section 7.  In order to meet added demand for the

  5  release of criminal history information created by this act,

  6  the Department of Law Enforcement may file an application with

  7  the Executive Office of the Governor certifying that there are

  8  no authorized positions available for addition, deletion, or

  9  transfer within the agency and recommending an increase in the

10  number of positions. The Administration Commission may, after

11  a public hearing, authorize an increase in the number of

12  positions in excess of the amount established by the

13  Legislature. Any request under this section is subject to the

14  notice and review procedures set forth in section 216.177,

15  Florida Statutes.

16         Section 8.  Subsection (14) of section 790.065, Florida

17  Statutes, as created by section 1 of chapter 93-197, Laws of

18  Florida, is amended to read:

19         790.065  Sale and delivery of firearms.--

20         (14)  This section is repealed effective June 1, 2000

21  October 1, 1999.

22         Section 9.  Subsection (1) of section 790.065, Florida

23  Statutes, 1998 Supplement, is amended to read:

24         790.065  Sale and delivery of firearms.--

25         (1)  A licensed importer, licensed manufacturer, or

26  licensed dealer may not sell or deliver from her or his

27  inventory at her or his licensed premises any firearm to

28  another person, other than a licensed importer, licensed

29  manufacturer, licensed dealer, or licensed collector, until

30  she or he has:

31


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  1         (a)  Obtained a completed form from the potential buyer

  2  or transferee, which form shall have been promulgated by the

  3  Department of Law Enforcement and provided by the licensed

  4  importer, licensed manufacturer, or licensed dealer, which

  5  shall include the name, date of birth, gender, race, and

  6  social security number or other identification number of such

  7  potential buyer or transferee and has inspected proper

  8  identification including an identification containing a

  9  photograph of the potential buyer or transferee.

10         (b)  Collected a fee from the potential buyer for

11  processing the criminal history check of the potential buyer.

12  The fee shall be established by the Department of Law

13  Enforcement and may not exceed $8 per transaction. The

14  Department of Law Enforcement may reduce, or suspend

15  collection of, the fee to reflect payment received from the

16  Federal Government applied to the cost of maintaining the

17  criminal history check system established by this section as a

18  means of facilitating or supplementing the National Instant

19  Criminal Background Check System. The Department of Law

20  Enforcement shall, by rule, establish procedures for the fees

21  to be transmitted by the licensee to the Department of Law

22  Enforcement. All such fees shall be deposited into the

23  Department of Law Enforcement Operating Trust Fund, but shall

24  be segregated from all other funds deposited into such trust

25  fund and must be accounted for separately.  Such segregated

26  funds must not be used for any purpose other than the

27  operation of the criminal history checks required by this

28  section. The Department of Law Enforcement, each year prior to

29  February 1, shall make a full accounting of all receipts and

30  expenditures of such funds to the President of the Senate, the

31  Speaker of the House of Representatives, the majority and


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  1  minority leaders of each house of the Legislature, and the

  2  chairs of the appropriations committees of each house of the

  3  Legislature.  In the event that the cumulative amount of funds

  4  collected exceeds the cumulative amount of expenditures by

  5  more than $2.5 million, excess funds may be used for the

  6  purpose of purchasing soft body armor for law enforcement

  7  officers.

  8         (c)  Requested, by means of a toll-free telephone call,

  9  the Department of Law Enforcement to conduct a check of the

10  information as reported and reflected in the Florida Crime

11  Information Center and National Crime Information Center

12  systems as of the date of the request.

13         (d)  Received a unique approval number for that inquiry

14  from the Department of Law Enforcement, and recorded the date

15  and such number on the consent form.

16

17  However, if the person purchasing, or receiving delivery of,

18  the firearm is a holder of a valid concealed weapons or

19  firearms license pursuant to the provisions of s. 790.06 or

20  holds an active certification from the Criminal Justice

21  Standards and Training Commission as a "law enforcement

22  officer," a "correctional officer," or a "correctional

23  probation officer" as defined in s. 943.10(1), (2), (3), (6),

24  (7), (8), or (9), the provisions of this subsection do not

25  apply.

26         Section 10.  Subsections (6), (7), and (8) of section

27  943.053, Florida Statutes, 1998 Supplement, are renumbered as

28  subsections (7), (8), and (9), respectively, and a new

29  subsection (6) is added to said section, to read:

30         943.053  Dissemination of criminal justice information;

31  fees.--


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  1         (6)  Notwithstanding any other provision of law, the

  2  department shall provide to each office of the Public Defender

  3  on-line access to criminal records of this state which are not

  4  exempt from disclosure under chapter 119 or confidential under

  5  law. Such access shall be used solely in support of the duties

  6  of a public defender as provided in s. 27.51 or of any

  7  attorney specially assigned as authorized in s. 27.53 in the

  8  representation of any person who is determined indigent as

  9  provided in s. 27.52. The costs of establishing and

10  maintaining such on-line access shall be borne by the office

11  to which the access has been provided.

12         Section 11.  This act shall take effect July 1, 1999.

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